Karnataka High Court
Javeed Ahmed Khan And Etc. vs Syed Ali on 7 June, 1994
Equivalent citations: AIR1994KANT331, ILR1994KAR1619, 1995(1)KARLJ594, AIR 1994 KARNATAKA 332, (1994) 2 RENCJ 230, ILR(1994) KANT 1619, (1995) 1 KANT LJ 594, (1994) 2 RENCR 640
ORDER
1. The petitioners in both the revision petitions being aggrieved by the orders dated 24-2-1988 passed by the VIIIth Additional Small Causes Judge, Bangalore City, in separate orders in H.R.C. Nos. 1675 and 1674/83 rejecting the petitions filed under Section 21(l)(h) and (j) of the Karnataka Rent Control Act, 1961 (the Act for short), have approached this court in these petitions challenging the legality and correct of the said orders on more than one ground.
2. The facts and circumstances and the question of law involved in both the petitions being one and the same, 1 dispose of both the petitions by the following common order.
3. I have heard learned counsel on both sides.
4. A few facts that are necessary for the disposal of these petitions are as follows :--
The respondent Syed Ali, in both the petitions, has been admittedly the tenant of the premises bearing No. 1/1 situated in 2nd Cross, Armugam Mudaliar Lane, Kalasipalyam, Bangalore, on a monthly rent of Rs.110/- under the original owner. The petitioners Javeed Ahmed Khan and Shabbir Ahmed Khan being brothers purchased portions of the said premises from its original owner. They have been doing business in Bakery and sweet meats in shop Nos. 63 and 64 situated in Kalasipalayam Main "Road respectively. Now the petitioner in C.R.P. No.4202 of 1988 wants to expand his business in Bakery for which present accommodation is not sufficient. The other petitioner also wants to shift his shop to the suit premises where he intends to do sale of cycle spare parts. Since the suit premises in both petitions were old with a roof of asbestos sheets and were in dilapidatdd condition, they wanted to shift their business there only after 'demolition and reconstruction of a new building. Accordingly, they obtained necessary licence, plan and estiamte sanctioned as per Exs. P1, P3 and P2 respectively by the Bangalore City Corportion. It is stated that the petitioners have enough capacity to invest requisite money for demolition, reconstruction and starting their intended business and according to them the suit premises are ideally suited for their business. It is further stated that they requested the respondent to vacate the premises, but he did not do so though he agreed, that their requirement of the suit. premises for the purpose is bona fide and reasonable and thai greater hardship would be caused to them if no order of eviction is passed against the respondent. Therefore, they filed separate applications under Section 21(1)(h) and (j) of the Act which came to be dismised by the Court below by the orders under revision. Hence these petitions.
5. It is necessary to mention here that during the pendency of these petitions, the petitioners had filed applications (I.A. No. I) for permission to amend the petitions by taking an additional ground under Section 21(l)(k) of the Act on the ground that subsequent to the disposal of the eviction proceedings, portions of the suit premises collapsed due to heavy rains resulting in their being unfit for occupation and that the Commissioner of the Bangalore City Corporation also issued an Emergent notice in No. AEE/KP/PR/161/91-92 dated 16-2-1991 calling upon the petitioners-landlords to vacate the premises due to dilapidated condition of the building. The said applications were allowed by this Court by its order dated 14-10-1993 with a direction to the trial Court to hold an enquiry on the question under Section 21 (l)(k) of the Act, after opportunity of being heard is given to both parties, record a finding thereon and submit the papers to this Court so as to enable it to proceed with the case on merits.
6. Pursuant to the direction of this Court, the trial Court held an enquiry on the ground under Section 2l(1)(k) of the Act, heard learned counsel on both sides and having considered the evidence on record, by its order dated 25-1-1994, held that the petitioners had utterly failed to prove that the suit premises was required for the immediate purpose of demolition orders by the Commissioner Bangalore Mahanagar Palika. This conclusion of the learned Judge has been based on the observation that except the notice issued by the Bangalore Mahanagar Palika on 16-9-1991 to the landlords to vacate the premises on the ground of the building being in dangerous condition, there was nothing on record to show that the Corporation was interested in demolishing the building.
7. On receipt of the papers with the finding as above from the trial Court, I have again heard the learned counsel on both.sides.
8. Sri T.R. Subbanna, learned senior counsel appearing for the petitioners, strenuously argued that the trial Court Committed an error in holding that the petitioners failed to prove the ground under Section 21(l)(k) of the Act, inasmuch as it is well settied law that once it is established that a local authority has directed demolition of the building by production of notice, the Court cannot go behind that notice and come to a different conclusion that the building does not require demolition. In other words, his submission is that the authorities of the Corporation inspected the suit premises collapsed partially due to heavy rains and found it unfit for occupation as it would collapse completely at any time. Therefore, the Emergent Notice in question came to be issued calling upon the owner to vacate the premises because of the condition of the building, and stating failure to do so will not make the Corporation responsible for the loss of lift and property of the persons coupled with the documentary evidence such as notice, Ex. P8, the letter, Ex. P7 written by the petitioner in C.R.P. No. 4202/1988, the photographs of the suit premises at Ex. P5 in this petition and Exs. P7 and P8 in the other petition are sufficient to prove that the suit premises were in dilapidated condition and therefore their demolition was indispensable. Thus, he submitted that the finding of the lower Court on the ground under Section 21(1)(k) against the petitioners being incorrect and illegal apparent on the face of record was unsustainable. As regards the findings on the grounds under clauses (h) and (j) of section 21(1), Sri Subbanna argued that the findings not based on the consideration of the evidence on record in its proper perspective were also unsustainable. On the above submissions, he prayed for allowing these petitions by setting aside the orders under revision.
9. Sri R.A. Rahman, learned counsel for the respondent-tenant, argued in support of the orders under revision.
10. The points therefore that arise for my consideration in these petitions are:
(1) Whether the Court below was justified in dismissing the petitions under Section 21(l)(h) and (j) of the Act filed by the petitioners.
(2) Whether it was correct in holding that the petitioners have failed to prove the requirement of the suit premises for their immediate demolition.
10A. I will first take second point for consideration.
11. To establish the ground under Section 21(l)(k), the petitioners mainly relied upon the notice, Exhibit P8 marked in H.R.C. No. 1674 of 1983, dated 16-9-1991 issued under Section 322(1) of the Karnataka Municipal Corporations Act, 1976 (the Act of 1976 for short) by the Assistant Executive Engineer, Bangalore Mahanagarpalika, Kalasipalyam sub-division, Bangalore. Similar notice of even date has been issued in the other case also. The notice reads:
"EMERGENY NOTICE.
Sub:-- Dilapidated building at premises No. 1, 2nd Cross, Arumugam Modialiar Street, Kalasipalyam, Bangalore, Division 43.
It is noticed by the undersigned that the building at No. 1, 2nd Cross, A.M. Street, Kalasipalyam, Bangalore, belonging to Sri Shabbir Ahmed Khan occupied by Sri Syed Ali, tenant, is in a ruinous/dangerous condition and a portion of the building on southern side (rear portion) has collapsed. Hence the said building is not fit for occupation and might collapse completely at any moment.
Hence you are by directed to vacate the said premises and move to a safer place in the interest of security of property and to avoid life risk.
This Emergency Notice is being served to you as per Section 322(1) of K.M.C. Act, 1976 and also in the interest of your property and valuable life.
If at any cost the premises is not vacated immediately the corporation is in no way held responsible for the loss of life or property of the inmates.
Sd/-XXX Sd/-XXX Junior Engineer, Asst. Exe. Engineer, Dn. 43. Bangalore Mahanagarpalika. To: Sri Shabbi Ahmed Khan, owner, No. 1, 2nd Cross, AM. Street, Kalasipalyam in Dn. 43, Bangalore."
12. Now we have to see the scope, object and intendment of the provisions of Section 322 under which the notices were stated to have been issued to the petitioners to vacate the premises in question and to move to a safer place in the interest of security of life and property as it might collapse at any moment. It reads:
"322. Precautions in case of dangerous structures.-- (I) If any structure be deemed by the Commissioner to be in a ruinous state or dangerous to passers by or to the occupiers of neighbouring structures, the Commissioner may, by notice require the owner or occupier to fence off, take down, secure or repair such structure so as to prevent any danger therefrom.
(2) If immediate action is necessary, the Commissioner may himself, before giving such notice or before the period of notice expires fence off, take down, secure or repair such structure or fence off a part of any street or take such temporary measures as he thinks fit to prevent danger and the cost of doing so shall be recoverable from the owner or occupier in the manner provided in Section 470.
(3) If in the Commissioner's opinion the said structure is imminently dangerous to the inmates thereof, the Commissioner shall order the immediate evacuation thereof and any persons disobeying may be removed by any Police Officer."
13. Section 313 of the Karnataka Municipalities Act, 1964 has almost similar provisions with a slight difference in wordings and I do not think it necessary to extract it as the object and intendmcnt of both the provisions are one and the same. It is enough if we consider the provisions of Section 322 of the Karnataka Municipal Corporations Act, 1976 within the ambit of which come the suit premises.
14. By a perusal of the language employed in Section 322 of the Act of 1976 it is seen that a duty is cast upon the Commissioner of the Corporation to take precautionary measures in case of dangerous structures by issuing notices to the owner or occupier of such buildings to vacate immediately therefrom and to fence off, take down, secure or repair such structure and if immediate action is necessary he may himself do it and recover whatever costs is incurred for the purpose from the owner thereof in the manner provided in Section 470. The Commissioner being of the opinion that the structure is imminently dangerous to the inmates thereof shall order the immediate evacuation thereof and any persons disobeying may be removed by any Police Officer.
15. The object and intendment of enactment of Section 322 is self-explanatory. It is an enabling provision because the very object of it is to enable the authorities to take precautionary measures to prevent danger to the life and property of not only the persons living in such structures or buildings but also passers by or the occupiers of neighbouring structures. In the instant case, the competent authority having inspected the suit premises was of the opinion that the structures are in dangerous-condition and therefore issued the notices in question to demolish them. Now the question is whether the Court can go behind that notice directing demolition of the structures in the interests of safety of life and property of the inmates and the neighbours thereof, and come to a different conclusion. This Court in Narendra Badigar Mattu Kammarar Sahakari Sangha Niyamitha v. Krishna Naikuntha Rao Deshpande, had the occasion to consider the similar question. Regard being had to the intendment of the Legislature and the object of Section 21(l)(k) of the Act, Chandrakant-raj Urs, J., as he then was, held in paragraph 3 as follows:--
"The relevant clause (k) of the proviso to sub-section (1) of Section 21 of The Act clearly provides that the landlord can seek eviction if a local authority has directed demolition of the building. Once that is established by production of the notice the Court cannot go behind that notice and come to a different conclusion that the building does not require demolition. To uphold such reasoning by Courts would be to create a needless friction between the local authority concerned and the Court and the purpose of the legislation will be totally defeated."
(Emphasis is supplied) This view of the learned Judge is with a view to not only uphold the intendment of the legislature but also avoid friction that may arise in the event of the Court taking a different view from the view expressed by the local authority exercising power under Section 322, inasmuch as the final authority is the Commissioner, in the instant case, to come to a conclusion on whether action requires to be taken under that provision to prevent any danger being emenated either to the occupier of the building or the neighbours including public at large. I respectfully agree with the view taken by the learned Judge in Desh-pande's case supra. Indeed, it appears to me that regard being had to the decisions of the other High Courts, that conclusion appears to be salutary and is juslified as the learned Judge has rightly observed that in the event of the Courts taking a different view from the view expressed by the local authority, necessarily ther will be a friction between the two and consequently the very purpose of legislation will be defeated. By virtue of Section 322 which is, as already staled, an enabling provision, the Commission is empowered to take preventive measures in case of imminent danger to persons and property from the structures coming with his jurisdiction. Besides, there is statutory responsibility cast on him under the Act to do so.
16. Unfortunately, the trial Court failed to apply its mind to the notice issued by the competent authority, the evidence let in by the Engineer of the Corporation who inspected the suit premises and opined about the state of the structures and the intendment of the legislature in enacting Section 322, while recording the finding on the question under clause (k) of sub-section (1) of Section 21 of the Act. During its enquiry, the Court examined Sri Srinivasa Murthy, Junior Engineer, as P.W. 2 on 5-1-1994. He has stated on oath that he inspected the premises on 16-9-1981, that portion of the southern wall of the premises collapsed due to heavy rains on 15-9-1981 and the remaining portion of the building being in dilapidated condition may fall down at any moment. He has further stated that therefore he issued notices to the petitioners and that he also informed both the owners of the fact of inspection and also bad condition of the buildings. It was elicited from the witness in his cross-examination that there was no need for him to issue prior notice to the occupants before inspection, that he did not draw any mahazar at the spot on that day, that he was working as such in 1983 in the Division within which the suit premises were located and that there was no direction to the owner or the occupier to demolish the structures immediately. This was made much by the learned counsel for the respondent-tenant and he argued that as there was no direction in the notice for immediate demolition, there is no need for demolition of the suit premises. Another factum elicited from the cross-examination of P.W. 2 was that the suit premises were not required for any public purpose and that the Corporation did not require demolition of the suit premises for a public purpose. I must say that it is irrelevant the purpose of understanding the object intendment of Section 21(l)(k) or Section 322. Base upon what is elicited from P.W. 2 in his cross-examination, the learned trial Judge sayed wrongly and erroneously when he held in the course of his order:
"The facts and circumstances of the case clearly disclose that Bangalore Mahanagar Palika is no longer interested in the demolition of the building, hence the petitioner cannot taken the aid of notice, Ex. P8, to evict the respondent from the building."
He has also observed in the course of the order that the Coroporation was not interested in demolishing the building for a public purpose and that there was no order for immediate demolition. I am of the view that the learned Judge failed to appreciate the object and intendment of the enactment of the provisions referred to above and he has also failed to understand the object behind the notice issued in these cases. Demolition of the suit premises is, of course, not for any public purpose but with a view to preventing danger to life and property of not only the inmates but also neighbours. It is nobody's case that the Corporation wanted to demolish the premis'es in question for any public purpose. The question of considering public purpose would not arise in a case like this. On the other hand, it is with a view to prevent any danger likely to be caused from structures in a ruinous state.
17. In view of what has been discussed above, I am clearly of the opinion that the trial Court was not justified in coming to the conclusion different from the one upon which the notices in question directing demolition of the suit premises came to be issued by the competent authority. Therefore, in the light of the decision in Deshpande's case supra, I have no alternative but to set aside that finding recorded by the Court below. Accordingly, it is set aside in both the cases.
18. Coming to the first point, it is to be seen whether the petitioners are able to prove that they require the suit premises for immediate demolition and reconstruction as it is reasonably and bona fide required by them for occupation by themselves to do business in Bakery and sale of bicycle spare-parts. They have produced licence, approved plan and estimate at Exs. P2, P1 and P3 respectively. The further ingredient to prove clause (j) of sub-section (1) of Section 21 of the Act is whether the landlords reasonably and bona fide require which has to be judged by the surrounding circumstances Which will include their means for reconstruction of building and other steps taken by them in that regard. In this connection, the petitioners have produced Pass Books -- of Javeed Ahmed Khan, petitioner in C. R. P. No. 3692/88 and Shabbir Ahmed Khan, petitioner in the other case issued by Amanath Co-operative Bank Ltd., Milia Buildings, Narasimharaja Road, Bangalore-2. showing an amount of Rs. 40,510/- and Rs. 35,057-60 Ps., outstanding in their names under S.B. A/c Nos. 8538 and 8738 as on 29-3-1984 and 31-3-1983 respectively. They are marked as Ex. P4 in both the cases in the Court below. By a perusal of the licence sanctioned by, and the plans approved by the competent authority and the estimates prepared enabling the petitioners to erect new building, it is clear that the petitioners have proved their bona fide intention for immediate demolition of the suit premises and erection of new buildings in their place. The landlord need not go further and establish that the condition of the building is such it requires immediate demolition -- for the purpose of clause (j) of sub-section (1) of Section 21. In Neta Ram v. Jiwan Lal, , the Supreme Court in a similar set of facts and circumstances observed that the genuineness of requirement for reconstruction can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to more profitable use after construction, the means of the landlord and so on. Interpreting the provisions of Section 21(l)(j) of the Mysore Rent Control Act (Act No. 22 of 1961), the Supreme Court in M/s. Panchamal Narayana Shenoy v. Basthi Venkatesha Shenoy, held:
"A landlord who seeks recovery of possession of a premises under clause (j) of proviso to Section 21 (1) must satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and erecting a new building in the place of the old one. Whether the landlord's requirement is reasonable and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the building and other steps taken by him in that regard."
It held further in paragraph 12:
"In considering the reasonable and bona fide requirement of the landlord under this clause the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. In our opinion it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasized in clause (k) of the proviso. When such a specific provision has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in clause (j). So the requirement under clause (j) is that of the landlord and cannot have any reference to the building."
19. The rulings of the Supreme Court in the aforesaid cases have been followed by this Court in B. Puttamma v. C.V. Ramana Iyer, (1972) 2 Mys LJ 307.
20. The Supreme Court in a subsequent case in Belde Venkatesham v. Chokkarapu Lakshmi Narasaiah, . considering the contention of the tenant that he was doing hardware trade in the suit premises for 27 years and it would be a hardship for him to be ejected outright vis-avis claim of possession by landlord on ground of bona fide requirement to commence business, held in paragraph-2 as follows :-
"We have heard counsel on both sides and are satisfied that there is hardly any substance in the appellant's contention. Even so the fact remains that for 27 years the appellant has been doing hardware trade in the suit premises and it would a hardship for him to be ejected outright. We consider it right to grant him time till 13th April, 1978 to surrender vacant possession of the premises to the landlord respondent....."
21. Considering the case by lo'oking at all the surrounding circumstances, such as the condition of the suit premises, their situation, the possibility of their being put to a more profitable use after construction, the means of the petitioners etc., in the light of the decisions of the Supreme Court and this Court, the evidence on record is sufficient to come to the conclusion that the petitioners purchased the properties in question with a view to take up business in Bakery and bicycle parts and as the buildings were in dilapidated condition, they intended to pull them down and erect new buildings in their place and then to start their business there, which would not only enhance the value of the buildings but also cater to the needs of their business. Thus, they have also proved the ground under clause (h) of Section 21(1) of the Acl that they have reasonably and bona fide required the suit premises for occupation by themselves for their business. The Court below failed to appreciate the evidence on record in its proper perspective while considering the bona fides of the petitioners on the grounds under clauses (h) and (j) of sub-section (1) of Section 21 of the Act. Therefore, its findings on these grounds recorded against the petitioners also cannot be sustained. The respondent-tenant has not been able to adduce any rebuttable evidence in support of his case. In a case of this kind, even comparative hardship does not lie in favour of the tenant, in view of the decision of the Supreme Court in Belde Vcnkatesham's case (supra).
22. Viewed from any angle, I do not see any sustenance in the orders under revision. Hence I make the following.
ORDER.
These Civil Revision Petitions are allowed and the orders under revision are set aside. The respondent-tenant, however, is granted three months' time to quit and deliver vacant possession of the suit premises to the petitioners. Ordered accordingly.
23. Petitions allowed.